The Justices of the UK Supreme Court: The Enemies of Anti-democratic Demagogues

Alan S. Reid, Senior Lecturer in Law, Sheffield Hallam University. The author welcomes comments on the blog at a.s.reid@shu.ac.uk.

The Cherry/Miller case ([2019] UKSC 41) reached its zenith on Tuesday morning, with a most newsworthy outcome; a unanimous decision that Prime Minister Johnson's Prorogation of Parliament was unlawful, thus a legal nullity and of no legal effect (at para. 69 of the judgment). The UK Parliament, having been put illegally to sleep, awoke on Wednesday morning with collective amnesia, and emerged refreshed from a dreich shower like Bobby Ewing, to get back to work and to normality.

The timing of the judgment couldn’t have been more fortuitous for purveyors of constitutional law idioms, anecdotes and folklore - thousands of law freshers at dozens of university law schools across the four nations of the UK will be treated to a plethora of twitter feeds, bad puns and embarrassing GIFs of politicians by law lecturers trying to make sense of it all, all of them feeling a bit smug and secretly delighted that constitutional law is at last hip, happening and dare say, even sexy.

As I have discussed previously, (here, here and here) the Scottish courts and the English High Court received applications from aggrieved members of the public, legal experts and politicians, extremely worried about Prime Minister Johnson's received wisdom to prorogue Parliament for 5 weeks through September and October 2019, at a time of immense constitutional upheaval and crisis, given the impending deadline of Halloween and the horror of a No-Deal Brexit. At first instance in Scotland, the petitioners in Cherry lost, Lord Doherty in the Outer House of the Court of Session deferring to the Prime Minister and the UK government's lawyer in Scotland view that the matter of prorogation was a matter of high politics, not law and thus beyond the purview of the courts. Similar sentiments furth of the Forth, led the English High Court, unanimously, to hold that Gina Miller's Judicial Review application was also asking an impertinent, essentially non-justiciable question.

Legal orthodoxy seemed to point to these claims being closed down on this well-established maxim of non-justiciability. Case(s) closed.

On appeal in Scotland to the Inner House of the Court of Session, the triumvirate of Lord Carloway, Brodie and Drummond-Young, (now colloquially known in legal circles as the Inner House 3) unanimously overturned the opinion of Lord Doherty in the lower Outer House. The egregious nature of the Prime Minister's decision meant that the matter was justiciable. It was a legal question: The questioning of an improper use of the royal prerogative.

The Supreme Court has largely vindicated the view of the Inner House 3, albeit with some differences of opinion (see Professor Mark Elliot's blog here). The Supreme Court, in a very rare show of absolute solidarity, made all the more amazing by the fact that the decision was made by an 11-strong bench, decided unanimously that the Prime Minister had acted unlawfully in advising the monarch to prorogue Parliament.

It is fair to say that the judgment, like Brexit itself (although the case is only indirectly concerned with Brexit), has divided the legal community, the general population and the politicians. It has polarised opinion like no other case before it.

At any level, the judgment is a remarkable one. However, its remarkableness is difficult to define and pin down, however the main reasons the opinion is remarkable are as follows.

First, as mentioned already, the judgment was a unanimous decision by 11 of the most eminent justices this country has produced. In the only other 11-strong bench case, the related case of Miller 1 ([2017] UKSC 5), the best the judges could agree on was an 8-3 split, with the dissenters even divided on their reasons for dissenting. In the Torture Evidence case (A (FC) v Secretary of State for the Home Department ([2005] UKHL 71), a seven strong bench of the House of Lords came close to being unanimous on all aspects of that case. The ability of Lady Hale to get another 10 strong willed, independent jurists to coalesce around a particular view of the facts and of the law is indeed remarkable.

Second, the judgment is a document of elegance, clarity and brevity, with a distinctly narrative feel. For such a constitutionally significant case, the text is remarkably light in size and in deployment of weighty legal justifications. The judgment is only 24 pages long and constitutional law academics, if marking this legal script, would berate the authors for only using the bare bones of the vast corpus of judicial precedent that was available. The Inner House 3 and the advocates before that house (and when in the Supreme Court), conversely, drew on a vast well of legal authorities to justify their stance. That judgment extended to 68 pages and was replete with judicial and historical precedents. The Supreme Court was content to produce a narrative judgment, drawing on grand constitutional principles and expectations.

The question beget by this brief, elegant and decidedly law-free judgment is why is it structured so?

The answers are not hard to discern and determinedly lie in the political sphere.

The Supreme Court, almost contemporaneously with the Cherry/Miller case, will celebrate its 10th anniversary in the next few weeks. It began life on the 1st of October 2009. It is fitting that the Supreme Court made such a historic judgment on the eve of its 10 year anniversary, for the judgment is a fine example of the court flexing its constitutional muscles. The Supreme Court is transforming itself into a Constitutional Court and with the Cherry/Miller case, the court has burnished its constitutional court credentials.

A defining feature of any constitutional court is that it decides decidedly political cases that deal with high politics and the inner workings of the constitution of that state. To that extent, the Supreme Court of the United Kingdom, absolutely performed a constitutional court function on Tuesday morning.

The judgment had to have the look and feel that it did for a number of important political reasons.

The judgment had to be unanimous because in this febrile environment, any dissent in the Supreme Court would be seized upon by Brexiteers and detractors that the decision was legally uncertain, incorrect and the will of arch Remainers. Thus, the justices were determined to present a united front that sent a powerful message that the highest members of the judiciary were at one on this matter, irrespective of their political views, of their particular areas of legal expertise and their longevity on the highest court of the land. The judges chose to put forward a coherent, decisive legal view to try and provide legal certainty for the whole country.

Further, these two cases that were sent to the Supreme Court posed an existential threat to the United Kingdom. The Scottish Court had unanimously held that the matter was justiciable and that on forensic investigation, the Prime Minister had acted unlawfully. Diametrically opposed to that, the English High Court refused to adjudicate on the matter, citing classic cases on non-justiciability. Scotland overwhelmingly voted to Remain in the 2016 referendum and England narrowly voted to Leave. These facts would have played heavily on the minds of the 11 justices. To simply dismiss the Inner House unanimous decision, expressly overrule that decision and affirm the English High Court view would be to imperil the unity of the United Kingdom. In such a situation, Scottish politicians, jurists and the general Scots populace writ large would arguably be more empowered and more likely to question their place in the United Kingdom. Remarkably, the Supreme Court drew heavily on the original view of the Inner House 3, simply stating that the advice of Boris Johnson to the Queen to prorogue Parliament…' was unlawful, null and of no effect and should be quashed.' (para. 69 of the judgment). Implicitly, the UK Supreme Court was simply endorsing the view of the Inner House and adopting the extensive legal declaratory power and jurisdiction of the Supreme Court of Scotland. The judgment, in so doing, managed to cleverly bring the UK jurisdictions closer together, neatly avoiding legally complex and technical questions on the nature of remedies north and south of the border.

The narrative nature of the judgment was also remarkable but entirely reasonable given the unique background to the case. The three day legal hearing from last week was eagerly watched by people across the globe and the judgment has been downloaded thousands of times and it made global news headlines. It was obvious that people were immensely interested in the case, and as such the justices would have been keen to make the law as accessible as possible, and the most obvious way to do so would be to demystify the law and use everyday, ordinary language. Alongside this imperative, the immense pressure to resolve the case quickly meant that the justices were under great time constraints, resulting in a pared down judgment that merely discussed the nub of the arguments. Further, the fact that the judgment would be desired to be read way beyond Westminster, Whitehall and the Windsor family, necessitated the rejection of excessive legalese and obscure references to historical events and laws.  The judgment is a masterful, accessible constitutional lecture on the grand overarching themes, laws, rules and conventions that constitute the living UK constitution.

The judgment has its detractors from all sides. It is too simplistic. It is too political. It is too lite on the law. It is too glib. It is interfering in politics. All of these criticisms can be legitimately levelled at the judgment. The strongest criticism is that of interference in politics. However, the judgment can be defended exactly on that basis. Parliamentary sovereignty was placed at the apex of the judgment. Alongside parliamentary sovereignty, the court was concerned to place parliamentary accountability at its side, an equal partner in the UK constitutional framework. In so doing, the court thus justified its interference in questions of politics. The current political impasse has illustrated the ineffectiveness of the parliamentary accountability process in holding the Prime Minister and the wider executive to account. Therefore, for the court to simply defer to parliamentary accountability would be a dereliction of duty, particularly in a situation where it is clear that these political mechanisms, both currently and in the near future, would manifestly fail to produce a satisfactory resolution. The court was thereby forced to act to restore equilibrium to the tripartite separation of powers, the central tenet of the UK constitution. In so doing, the court also gave powerful effect to a central tenet of the Leave campaign from 2016: the Supreme Court of the UK took back control and gave Parliament back its sovereignty.

Barnard & Peers: chapter 27

Photo credit: Pamela Ewing